Just before Congress broke for its August recess, members vastly expanded the Bush administration's authority to wiretap communications without warrants.

On Aug. 6, President Bush signed the Protect America Act of 2007 (S. 1927) (PAA), which gives the Attorney General and Director of National Intelligence (DNI) the authority to wiretap any person reasonably believed to be overseas, including communications to or from one or more parties who are inside the United States. Even though the PAA included a six-month sunset on the powers granted by the law, the mandatory orders can be issued for up to a year in secret with limited oversight by Congress and the judiciary.

Passage of the bill came after heavy lobbying by the administration to make drastic changes to the Foreign Intelligence Surveillance Act (FISA) and to reject revisions proposed by the Democratic majority. Congress deemed FISA, as it was written, inadequate because it permitted the warrantless wiretapping of communications between two foreigners when the wiretap was executed on foreign soil. When the call was routed through the U. S., however, as many communications are, a FISA order was required. Congress was under pressure to make revisions due to a revelation by Mike McConnell, the DNI, that the FISA court recently issued an opinion confirming the requirement of court orders for such wiretaps.

Congress's action comes on the heels of McConnell's other revelation that the spying activities under the administration's warrantless wiretapping program were in fact broader than previously acknowledged by Bush. In a letter to Sen. Arlen Specter (R-PA), ranking member of the Senate Judiciary Committee, McConnell acknowledged the existence of other programs beyond the National Security Agency's (NSA) Terrorist Surveillance Program (TSP), which was limited to international communications involving members of Al Qaeda. The revelation was made, in part, to allay concerns that Attorney General Alberto Gonzales made a misstatement in his testimony before the Senate Judiciary Committee.

The Democratic proposal, drafted by Sen. Jay Rockefeller (D-WV), revised FISA to permit warrantless wiretapping of foreign-to-foreign communications, while preserving several important checks and balances. On Aug. 3, McConnell issued a statement arguing that the majority bill, by requiring warrants for communications involving U.S. citizens in the country, created "significant uncertainty" in the legality of the agency's surveillance practices. "I must have certainty in order to protect the nation from attacks that are being planned today to inflict mass casualties on the United States."

The administration rejected Rockefeller's bill and proposed the alternative, PAA, that was eventually signed into law. The PAA permits warrantless wiretaps involving foreign-to-foreign communications but does so by permitting warrantless wiretapping for all foreign intelligence collection methods and may even permit domestic warrantless wiretapping.

The PAA redefines "electronic surveillance" to omit "surveillance directed at a person reasonably believed to be located outside of the United States." Hence, the statutory requirement that judicial orders be received for electronic surveillance no longer applies to communications involving foreigners, even if U.S. citizens on U.S. soil are involved and even if there are no clear ties to criminal or terrorist behavior.

Congress's grant of authority in PAA goes far beyond the limits of TSP, which ignited a firestorm of controversy when it was reported by the New York Times in Dec. 2005. "The NSA could collect the communications of billions of people overseas and seize millions of international communications of Americans every day for the foreseeable future," stated the Center for National Security Studies.

The revision to FISA eliminates the statutory requirement to obtain judicial approval for wiretaps involving communications in which a "significant purpose" of the order is to collect foreign intelligence and one or more of the persons are not within the U.S. The orders to disclose communications are mandatory, though they can be challenged in court. It is still an unsettled question, though, as to whether the Fourth Amendment, which protects against unreasonable searches and seizures, or other sections of the U.S. Constitution apply to the subset of these communications involving American citizens, in which case a court order may still be required.

"I commend members Congress who supported these important reforms," said Bush on Aug. 5. "When Congress returns in September the Intelligence committees and leaders in both parties will need to complete work on the comprehensive reforms required by Director McConnell, including the important issue of providing meaningful liability protection to those who are alleged to have assisted our Nation following the attacks of September 11, 2001."

One provision not included in the bill but proposed by the administration, would have given blanket liability protection to telecommunication companies currently being sued for complying with orders issued by NSA's TSP. This issue will likely be debated in the lead-up to the six-month renewal of the PAA.

There are few reporting requirements in the PAA. The administration merely has to report to Congress if an agency exceeds the authority granted in the bill and does not have to report on how many calls are monitored or how often the powers of PAA are invoked. Additionally, there is a requirement for the executive to report to the FISA court on the procedures used to target foreigners after implementation of an order, but the court can only reject such procedures if the executive is found to be "clearly erroneous," a notoriously difficult standard to prove. The court is limited to considering whether or not the procedures limit the collection of intelligence to communications in which one or more persons outside the U.S. are targeted and in which foreign intelligence collection is a significant purpose.

A six-month sunset was placed on PAA after which, without renewal, its provisions would expire. The sunset, though, is weakened by the provision granting the Attorney General and DNI the authority to issue orders that are good for up to one year. Assuming this provision is still in effect in January 2008, warrantless wiretapping orders could be issued which would be good for the remainder of the Bush administration.